Wisconsin Supreme Court Ruling Highlights Need for a Constitutional Right to Vote

// Published August 11, 2014
Voter ID 1

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As a believer in the power of an inclusive democracy, and someone who proudly calls the state of Wisconsin home, the Wisconsin Supreme Court’s decision last week to uphold the state’s controversial voter ID requirement was disappointing. The law itself, which requires voters to have certain forms of photo ID in order to cast a vote, is problematic because it has the potential to reduce statewide voter turnout, since not every citizen is automatically issued the required identification upon reaching voting age; and not every citizen keeps an active driver’s license as they grow older. Furthermore, it will have a disproportionate impact among low-income and minority voters who are less likely to have a valid photo ID. Under the new law these voters will be forced to obtain a “free” voter ID from the Department of Motor Vehicles (DMV).

FairVote does not oppose all forms of photo ID laws, but believes that such laws should be crafted so that eligible voters are never denied a fair chance to participate. While the ID itself is technically free under Wisconsin law, many of the personal documents (such as a birth certificate) that are needed to obtain a valid photo ID require fees. In this way, the law - as written - would essentially act as a poll tax, requiring some voters to pay to cast a ballot. In the slightly reconstructed version of the law upheld by the court, citizens unable to afford those documents will not have to pay any fee; however it is still unclear how that determination will be made by the DMV and applied to voters seeking a photo ID. Regardless, a new hurdle between voters and the ballot box has been constructed, and now supported by the state’s highest court, despite new studies showing an astounding lack of evidence of impersonation fraud at the polls - the only kind of voter fraud potentially addressed by this voter ID law.  

The manner in which the Wisconsin Supreme Court reached its decision sheds light on a broader concern: as law professor and Promote Our Vote advisory committee member Josh Douglas has noted, the absence of an explicit right to vote in the U.S. Constitution often leads state courts to weaken voting protections in state constitutions. While various federal constitutional amendments have expanded protections of the right, none of those amendments establishes voting as a fundamental right, leaving voting rights vulnerable to restrictive laws that serve partisan politics. The result in this case, and in many others across the nation, is that some voters are left on the outside looking in and facing significant burdens at the ballot box.

The Wisconsin Supreme Court’s decision is a painful reminder of this shortcoming of the U.S. Constitution. Like nearly all states, the Wisconsin Constitution grants an explicit right to vote for every citizen of voting age. Nevertheless, the disparity between the U.S. Constitution and the Wisconsin Constitution left room for the 5-4 majority on the Wisconsin Supreme Court to cite various precedents set by the U.S. Supreme Court under the federal Equal Protection Clause, and consider only whether the law was written to be administered equally. This resulted in their decision to uphold the voter ID law and bypass Voter Id 2the explicit individual right to vote enumerated in the Wisconsin Constitution.

While the law in question would be administered “equally” among Wisconsin citizens, in that no citizen is exempt from the photo ID requirement, the fact remains that the burden placed on some Wisconsin voters violates their explicit right to vote under the state constitution. This merging of the Wisconsin and U.S. Constitutions in the court’s decision-making process is known as “lockstepping,” a consequence of the absence of an explicit right to vote in the U.S. Constitution.

The Court’s decision illustrates that even an explicit right to vote in a state constitution is not enough to protect voters. Without that right explicitly stated in the U.S. Constitution, restrictive voting laws and political interests will continue to pose a threat to the individual right to vote, as there are numerous ways that ballot access can be weakened or become a part of the partisan fray. Political actors from across the spectrum are often tempted to exploit these weaknesses in the name of partisan politics, and to the detriment of individual voting rights.

FairVote has been a national leader in advocating for amending the U.S. Constitution to explicitly grant an individual right to vote. Last year we held events with the lead congressional sponsors of House Joint Resolution 44, an amendment to the U.S. Constitution that would establish an explicit, individual right to vote for all American citizens, including Wisconsin’s own Mark Pocan. We are also building support for the bill through our Promote Our Vote project, which involves local governments and campuses passing resolutions backing the amendment and pledging to do everything they can to uphold voting rights and encourage voter participation. Just last week, a resolution was passed unanimously in Cincinnati after Rev. Jesse Jackson Sr. testified to the city council.

A constitutional right to vote would guarantee the voting rights of every eligible citizen; defend against attempts to disenfranchise individual voters; and in the context of the Wisconsin Supreme Court’s decision, it would ensure that court rulings reflect the American ideal that an individual right to vote is of paramount importance in any inclusive democracy. Please consider contacting your Member of Congress in support of H.J. Resolution 44, and back a Promote Our Vote resolution in your community today